01 January 2017

Deportation

Reading of the Returning Offenders (Management and Information) Act 2015 (NZ) noted in the preceding post was triggered by media coverage about the impending deportation of 'career criminal' Pio Steve, a New Zealand national who has lived in Australia most of his life.

The SMH reports

New Zealand's Labour Corrections spokesman Kelvin Davis said Steve was a "product" of Australia.

"He went to school and was shaped in Australia. He's an Australian. It's unfair of them to dump him here, because it makes New Zealand less of a safe place," said Mr Davis.

In Steve and Minister for Immigration and Border Protection (Migration) [2016] AATA 1054 the Minister's decision to cancel Steve's visa was affirmed.

The Tribunal stated

The applicant, Mr Pio Steve, is a 49 years old citizen of New Zealand who arrived in Australia on 6 May 1968.

On 1 September 1994, Mr Steve was granted an Absorbed Persons visa.

On 29 April 2016, Mr Steve’s Absorbed Persons visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) after he was sentenced to three years imprisonment on 22 May 2015.

On 21 May 2016, Mr Steve lodged a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A).

On 2 September 2016, the Minister’s delegate decided not to revoke the cancellation decision. Mr Steve subsequently lodged an application with the Administrative Appeals Tribunal seeking a review of this decision.

The matter was heard in Sydney on 24 and 25 November 2016. Mr Steve attended the hearing in person and had legal representation.

Mr Steve was born in New Zealand in 1967 and came to Australia with his parents when he was 13 months old. He has never returned to New Zealand.
His father was a New Zealand citizen. His mother was born in Poland; she came to Australia with her family after the Second World War and became an Australian citizen in 1964.

Mr Steve was the eldest of three siblings. There were some arguments in the family home during his childhood, which were attributable to his father’s behaviour. His father died when Mr Steve was in his late teenage years and his younger sister died when he was 20 years old. He described close continuing relationships with his mother and younger brother.

After completing his Year 10 School Certificate, Mr Steve trained as an apprentice chef and worked as a ‘chain man’ for Blacktown Council.
Mr Steve was introduced to heroin by his then-girlfriend’s brother when he was 18 years old and he subsequently developed an addiction.
Since his late teenage years, Mr Steve has been ‘in and out of jail’. He lived in Queensland for several years in the late 1990s; during this time, he was able to maintain drug abstinence and consistent employment. Mr Steve returned to Sydney in 2000 and relapsed into substance use.
In 2008, Mr Steve was hit by a bus and sustained injuries to his left eye, nerve damage and impaired sensation on his left side and spinal damage in his lower back.

Criminal record

Mr Steve has an extensive criminal record dating from 1985 to 2015. Some of the criminal offences described in his National Police Certificate dated 22 March 2016 are set out below:

30 March 1990: conviction in Penrith District Court: ‘Accessory after the fact of break, enter and steal’ – minimum sentence of two years imprisonment; ‘Larceny motor vehicle’ – minimum sentence of two years imprisonment; and ‘Break, enter and steal’ – minimum sentence of two years imprisonment.

30 October 2003: conviction in Penrith District Court: ‘Driving while disqualified from holding a licence’ – sentence of six months imprisonment; ‘Break and enter building and steal value <$15,000’ – sentence of two years imprisonment with a non-parole period of 18 months.

25 June 2010: conviction in Parramatta Drug Court: ‘Break and enter building and steal value <$15,000’ – sentence of two years and six months imprisonment with a non-parole period of 12 months; ‘Break and enter building and steal value <$15,000’ – sentence of three years and six months imprisonment with a non-parole period of 15 months; ‘Shoplifting’ – sentence of three months imprisonment and ‘Possess prohibited drug’ – sentence of one month imprisonment.

16 September 2010: conviction in Blacktown Local Court: ‘Affray’ – sentence of one month imprisonment; and ‘Common assault’ – sentence of three months concurrent imprisonment.

12 August 2011: conviction in Mt Druitt Local Court: ‘Common assault’ – sentence of nine months imprisonment with a non-parole period of six months.

21 August 2014: conviction in Mt Druitt Local Court: ‘Shoplifting value <$2,000’ – sentence of 12 months imprisonment with a non-parole period of six months.

22 May 2015: conviction in the Parramatta District Court: ‘Aggravated break and enter and commit serious indictable offence in company’ – sentence of three years imprisonment including a non-parole period of two years; and ‘Goods suspected of being stolen in/on premises’ – sentence of three months imprisonment.

Mr Steve also has a substantial record of traffic offences including driving an unregistered and uninsured vehicle, speeding, and several offences of driving while disqualified.

The power to revoke a visa cancellation

Pursuant to s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test. A person is taken to not pass the character test if he or she has a ‘substantial criminal record’. A person who has been sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ as defined in ss 501(6)(a) and (7) of the Act.

Under s 501CA(4) of the Act, the Minister (and therefore the Administrative Appeals Tribunal on review) has the discretion to revoke the original cancellation decision if the Minister is satisfied that the person passes the character test or ‘there is another reason why the original decision should be revoked’.

Mr Steve has a ‘substantial criminal record’ and so he does not pass the character test. Mr Steve does not dispute this.
I must therefore consider whether there is another reason to revoke the original cancellation decision.
When considering whether to revoke the cancellation decision, I am required under s 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.

The Principles set out in cl 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. The Principles state:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

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